I Thought the Trump Conviction Would Never Hold Up. But a Huge Problem Just Got Fixed.

“If you come at the king, you best not miss,” Omar Little said in The Wire, paraphrasing Emerson. I have been a vocal critic of the Manhattan district attorney’s office’s decision to bring its criminal case against Donald Trump, but now the time has come for me to give the prosecutors credit where it is due: They did not miss. In addition to winning the first conviction of a former U.S. president, they addressed some of the most puzzling legal problems that had hung over the trial, which could make that conviction less vulnerable on appeal. For months I have been worried about the New York criminal case against Donald Trump for falsifying business documents in order to cover up a scheme to unlawfully influence the 2016 election via a hush money payment to adult film actress Stormy Daniels. The legal theory was, to me, dubious. Of particular concern was what other critics later dubbed the case’s “time warp” problem: that the prosecution was relying on a set of 34 purely internal documents—Michael Cohen’s pay stubs, invoices, and Trump’s personal ledger entries—as a basis for an “intent to defraud” the “voters” in the 2016 election. As I wrote last year in the New York Times: “If a business record is internal, it is not obvious how a false filing could play a role in defrauding if other entities likely would not rely upon it and be deceived by it. Even if one can argue that the statute should apply to internal records, this is not the ideal time to test a seemingly novel (or even a very rare) application.”

This problem became, in my view, even more significant as the prosecution and the judge emphasized, in the months before trial and through the opening statements, that the case was about defrauding the “voters.” All 34 of these documents were made in 2017. How could voters in 2016 be “defrauded” by documents that did not then even exist? In a series of posts in March and in my New York Times follow-up essay in April, I shared a suggestion from a friend, Boston College law professor and former prosecutor Jeffrey Cohen: The prosecution should emphasize that the target of the fraud was the government, to conceal violations of federal election laws. “In short: It’s not the crime; it’s the cover-up.”

However, in the early stages of the trial, the judge and prosecution had framed the case as Trump defrauding the “voters,” a politically compelling story but so broad as to be confusing, both legally and factually. This is where things get complicated.